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tion were the two leading political parties. St. 1893, c. 417, § 28. "Whenever upon written complaint * *to the selectmen of a town, and after notice and hearing, it shall appear that a registrar of voters, other than the * town clerk, has ceased to act with the political party which he was appointed to represent, the * ⚫ selectmen shall remove such registrar from ofId. § 29. The petitioner having made a written complaint to the respondents, the selectmen of Wellesley, that two registrars appointed to represent the Democratic party had ceased to act with that party, the respondents, upon hearing the complaint, decided that it was not shown that the registrars had ceased to act with the Democratic party, and declined to remove them from office. One of these two registrars having died after this decision, the petitioner now asks a writ of mandamus commanding the selectmen to remove from office the survivor of the two registrars, and to "appoint two members of the second political party at the last state election to the vacancies now existing and so created." The petition alleges that the selectmen acted at the hearing with the willful intent to defeat the purpose of the law, in excluding evidence offered in support of the complaint, and that their decision was willful and in bad faith, and in defiance of the provisions of the statute. The petition for mandamus has been heard and dismissed by a single justice of this court, and, the petitioner having excepted to the refusal of the single justice to give certain rulings, those exceptions have been entered and argued in the full court.

The bill of exceptions purports to state all the evidence. None of it tends to show that the allegations of the petition which charge the selectmen with bad faith, or with acting with an intent to defeat the law, were true; and two of the three selectmen, being called as witnesses by the petitioner, testified that they acted in good faith, and according to their best judgment, and we assume that it was so found by the single justice who dismissed the petition. We do not consider, and do not now decide, whether this court, under the provisions of St. 1897, c. 530, § 20, or under its jurisdiction to entertain petitions for mandamus, will at the suit of an individual issue its writ to command officers like the respondents to reverse their official action in removing or refusing to remove, or in appointing or refusing to appoint, officials like registrars of voters, when such official action has been taken after a hearing conducted in good faith, and the decision has been arrived at in good faith. Nor do we consider or decide whether a request for a writ of mandamus to compel the removal of one registrar could be joined with a request to compel the same respondents to appoint to a vacancy occasioned by death and another vacancy to be filled by the removal for which the petitioner

asks, there being nothing to show that the respondents have refused or neglected to proceed to fill the vancancies according to law.

The petitioner's requests for rulings all proceed upon the theory that the two leading political parties are to be determined only by ascertaining the political platforms upon which candidates voted for at the time of the last state election were officially nominated, ascertaining the number of votes cast at such election for the respective candidates, and designating as the two leading political parties that body of persons which adheres to all the declarations of the platform and supports all the candidates nominated upon the platform. Besides this general theory, the first request assumes that a political town committee can authoritatively declare by vote that a former member of its political party is no longer such a member, and that the status of the person named in the vote is thereby conclusively determined, and is binding upon all officials and courts who may be called upon to consider the question. Under the second request, it is made essential that the person who is to be counted as a member of a political party must have voted at the next preceding election.

Without discussing these requests in detail, we are of opinion that they were all properly refused. The words, "the two leading political parties," in the election laws, are not used in the sense for which the petitioner contends. The purpose of the election and caucus laws is to enable those who have the elective franchise to exercise it freely and safely, and to make it certain that the I will of the electors there exercised shall be truly ascertained and given effect. It is not the purpose of these laws to enforce discipline within any political party, or to enable one division or faction of a political party to obtain or to retain control of the party organization. The history which shows that we have always had "two leading political parties" shows, also, that generally one or both of these leading political parties is made up of factions or divisions, neither of which assents to or supports all of the declarations or candidates of the other division, while yet the members of these factions or divisions act with the leading political party to which they belong, in opposing generally the declarations of political faith and the candidates of the other leading political party. For many years the two leading political parties were the Whigs and the Democrats. Then for a short interval the Native Americans, or "KnowNothings," were a leading political party. Since that time the two leading political parties have been the Republicans and the Democrats, and there never has been a time when all the members of either of those parties subscribed to all of the same declarations of principles or supported all of the party candidates. The only test given in the particular statute now under consideration is

that the registrar shall act with that one of the leading political parties which he was appointed to represent. It is not required that he shall be recognized as in regular standing by, or shall in all things act with, the predominant faction or division of that leading political party. Exceptions overruled.

HEALEY v. LATHROP.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.) EMPLOYMENT OF SPECIAL POLICE-LIABILITY FOR THEIR ACTS.

A special police officer, appointed, in pursuance of St. 1878, c. 244, § 6, on the application of defendant, and paid by him, is not a servant, so as to make defendant liable for his acts, by reason of the statute requiring defendant to give bond to be liable to parties aggrieved by any official misconduct of such officer "to the same extent as for the torts of agents and servants in their employment."

Exceptions from superior court, Suffolk county; Daniel W. Bond, Judge.

Action by Michael Healey against George E. Lathrop. There was a verdict for plaintiff, and defendant excepts. Exceptions sustained.

W. H. Baker, for plaintiff. C. F. Eldredge, for defendant.

HOLMES, J. This is an action of tort against the keeper of a place of amusement in Boston, seeking to make him liable for an assault and battery alleged to have been committed by one Mead, a special police officer, while on his premises. Whatever the officer did, he did as such police officer, and without direction or knowledge on the part of the defendant. The officer was appointed, in pursuance of St. 1878, c. 244, § 6, upon the application of the defendant, to serve without pay from the city, under such rules and regulations as the police commissioners deemed expedient. He was paid by the defendant, and the defendant gave the bond required by statute. At the trial the defendant asked the judge to direct a verdict for him; but the judge refused, and instructed the jury that the defendant, under the stat

ute, and the arrangement which he had made, became liable for the official misconduct of Mead in his employment, just as for the torts of any servant. The case is here on exceptions. The only question is whether Mead was the defendant's servant. That was the ground of liability alleged in the declaration, and laid down in the charge. So much of the argument for the plaintiff as turns on the supposed duty of the defendant to take reasonable care to protect the plaintiff from abuse by strangers has no bearing upon the case.

The case depends upon the construction of St. 1878, c. 244, § 6. That section required the defendant to give bond to the city treasurer "to be liable to parties aggrieved by any official misconduct of such police officer to the same extent as for the torts of agents and servants in their employment." It continues, "And proceedings may be had upon said bonds in the same manner as upon the bonds of constables." If the statute had meant to make the officer the servant of the person who applies for his appointment and gives bond for his conduct, presumably it would have said so. But, if it had said so, it would have insisted upon a fiction being treated as a fact. It is true that the defendant asked to have an officer appointed,perhaps. asked to have Mead appointed,— and that he paid him. But he did not appoint him, could not remove him, and could not control his official conduct, which was governed by the regulations of the police commissioners, and his own sense of duty as a public officer. The statute does not call the relation that of master and servant, and goes no further than to make the defendant liable upon his bond "to the same extent" as for a servant. The words quoted imply that the officer is not one. They mean to the same extent as in another case which does not exist. In Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, and 35 N. E. 1, the jury found that the wrong done was not done by the servant in the capacity of a policeman, whereas the contrary appeared in this case. The form of the defendant's undertaking, and presumably the statute, also, were different from those in the present case.

Exception sustained.

SEWELL v. NEW YORK, N. H. & H. R. CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

STREET RAILROADS-CROSSINGS-NEGLIGENCE.

A boy who attempted to cross a private street railroad crossing on a bicycle, without looking for a car, and without relying on being warned by signals, was negligent.

Exceptions from superior court, Suffolk county; Caleb Blodgett, Judge.

Action by Benjamin B. Sewell, Jr., by his next friend, against the New York, New Haven & Hartford Railroad Company. Verdict for defendant, and plaintiff brings exceptions. Overruled.

J. O. Teele, for plaintiff. Benton & Choate, for defendant.

HOLMES, J. This is an action for personal injuries caused by running into a train at a crossing. The judge directed a verdict for the defendant, and the case is here on exceptions. The plaintiff told his own story very fairly. He was nearly 13 at the time. He was riding a bicycle along a street in Hull, called "V Street," towards the seashore, and was looking straight ahead, watching for a steamer which he wanted to see. The street ran to an electric railroad, and continued on the other side of it; but the crossing was private, and so marked, although planked by the railroad company. The plaintiff knew of the railroad, and that trains ran upon it. He paid no attention, did not look out for the cars, but rode across the first track, and on the second was struck and hurt. He says that he could have stopped almost as quickly as if he had been on foot, if he had looked up the track, and had seen the train. He does not pretend that he was relying upon receiving warning of an approaching train, and it is not necessary to consider whether there is any evidence that the train did not give whatever warning was usual and proper (Hubbard v. Railroad Co., 159 Mass. 320, 34 N. E. 459), or whether it was bound to give any warning at all. The case is the simple one of a boy riding headlong into a train, without taking any precaution, his mind at the time being full of something else. There is no evidence of due care on his part, as there was in Tyler v. Railroad Co., 137 Mass. 238. There is nothing to excuse him for not looking if he could see, or for not getting off his wheel, and advancing cautiously, if he could not Creamer v. Railway Co., 156 Mass. 320, 324, 31 N. E. 391; Chase v. Railroad Co.,

see.

167 Mass. 383, 387, 45 N. E. 911; Butterfield v. Railroad Corp., 10 Allen, 532; Robertson v. Railroad Co., 180 Pa. St. 43, 36 Atl. 403. Exceptions overruled.

THAYER v. BADGER.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

SURVIVING PARTNERS.

It is not error for a judge to refuse to rule as matter of law that a surviving partner has no right to turn over merchandise of the late firm to a new firm of which he is a member, to be sold on commission, he receiving a share thereof; and a finding that the course adopted was prudent, and the charge reasonable, will not be set aside on appeal.

Report from superior court, Suffolk county; J. H. Hardy, Judge.

Action by Edward K. Thayer against Erastus B. Badger, as administrator. There was a judgment for plaintiff upon the findings of the auditor. Case reported. Findings ordered to stand.

Charles K. Cobb and Henry N. Berry, for plaintiff. Lincoln & Badger and H. W. Ogden, for defendant.

HOLMES, J. The only question in this case is whether the judge below was bound to rule as matter of law that a surviving partner has no right to turn over merchandise of the late firm to a new firm of which he is a member, to be sold upon commission by the latter; and that the commission charged, or at least the surviving partner's share, should not be allowed in the account between him and the executor of his deceased partner. In this case the auditor has found that the course adopted was prudent and reasonable, and the charge reasonable. Whether we should have made the same findings we cannot tell, but, they having been made, and we being bound by them, we are not disposed to go so far as to say that it is impossible that the charge should have been justified by the saving to the old firm and the trouble to the new from the arrangement. It is true, no doubt, that there is a disinclination to allow pay to a surviving partner for winding up (Dunlap v. Watson, 124 Mass. 305), but the tendency is to deal with such questions on their particular circumstances, rather than by absolute rules. Turnbull v. Pomeroy, 140 Mass. 117, 118, 3 N. E. 15; Robinson v. Simmons, 146 Mass. 167, 176, 15 N. E. 558. Findings to stand.

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1. Whether the plaintiff was guilty of contributory negligence was a question for the jury.

2. Where, in an action for damages, it is proved that, as the elevator was about to be lowered, plaintiff came with his wheelbarrow, and asked the superintendent, who was in the elevator, if he had room to put his wheelbarrow on, and the superintendent replied that there was not much room, the jury could find that plaintiff understood from the reply that the superintendent assented to plaintiff's putting his wheelbarrow on, and that he could infer that he could safely proceed, especially if he had not heard the previous warning to "stand clear."

3. St. 1887, c. 270, § 1, provides that where a personal injury is caused to an employé, who is in the exercise of due care and diligence, by the negligence of any person, in the service of the employer, intrusted with and exercising superintendence, and whose sole or principal duty is that of superintendence, the employé shall have the same right of compensation as if he had not been an employé. Held, that whether an employe's injury is due to the negligence of a person, in the service of the employer, intrusted with and exercising superintendence, is a question for the jury.

4. The order, "Let her go," given by one in charge of an elevator, is an act of direction or oversight, tending to control others, and to vary their situation or action because of his direction.

5. Where a superintendent in charge of an elevator gives an order for it to descend, and then ascertains that a workman is attempting to put a wheelbarrow on the elevator, it is his duty to countermand his order, or to take some means to prevent injury to the workman, and it is negligence on his part not to do it.

6. An employer is not liable, under St. 1887, c. 270, § 1, for damages resulting from acts of superintendence performed by one who is an ordinary fellow workman with the employé injured.

Exceptions from superior court, Suffolk county; J. H. Hardy, Judge.

Action by Angelo Cavagnaro against W. L. Clark. Judgment for plaintiff, and defendant excepts. Overruled.

J. R. Murphy, for plaintiff. John Lowell, for defendant.

BARKER, J. 1. Whether the plaintiff was guilty of contributory negligence was a question for the jury. The evidence would warrant a finding that when he attempted to put his wheelbarrow upon the elevator platform the platform was standing at the level of the floor, and that its descent had not yet begun. Assuming that he knew that the superintendent, who stood on the platform, had placed himself there to be lowered with the platform, and that it was the custom, when any person so placed himself on the platform, for any one standing near to press the button, as a signal for the engineer below to

lower the platform, and that there was always an interval between the pressing of the button and the beginning of the descent, so that the signal to lower might have been given before the plaintiff came with his wheelbarrow, he testified that he asked Smith, the superintendent, if he had room to put his wheelbarrow on, and that Smith replied that there was not much room. From this reply

the jury could find that the plaintiff understood the superintendent to assent that the plaintiff should put the wheelbarrow on, and that the plaintiff could reasonably infer that he could safely proceed, especially if he had not heard the previous warning to "stand clear."

2. It was also a question for the jury whether the plaintiff's injury was due to the negligence of a "person in the service of theemployer, intrusted with and exercising superintendence," within the meaning of St. 1887, c. 270, § 1, cl. 2. So far as appears, the sole duty of this superintendent was that of superintendence, and, in riding upon the elevator from the floor of the building where he was to a lower floor, he was acting in the service of his employer. He testified that he Jumped upon the elevator, and said, "Let her go," and that thereupon a workman who was standing near the button rang three bells, and shouted, "Stand clear," and that a minute or so later the elevator started down, and that the first he knew of the plaintiff's being near was when he turned and saw the plaintiff falling. The order, "Let her go," was itself an act of direction or oversight, tending to control others, and to vary their situation or action because of his direction. Cashman v. Chase, 156 Mass. 342, 31 N. E. 4. Having given the order, and seen that it was followed by the signal, the giving of which would cause the elevator to descend, it would be his duty to countermand his order, and to take means to prevent the elevator from going down, if, after the giving of the signal, he had reason to suppose that another person was about to attempt to put a wheelbarrow upon the platform; and that he had such reason might be found from the plaintiff's testimony. This duty of countermanding the order which he had given, or of taking some means to prevent the injury of a workman whom he knew was about to put himself in danger by doing an act which would have been safe, save for the fact that the elevator was about to go down, was itself a duty of superintendence, a duty to perform an act of direction or oversight tending to control others, and which his position as superintendent required him to give, and made it. negligence, in his work of superintendency, not to give. McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464. If he had been merely an ordinary fellow workman with the plaintiff, the acts which he did, and those which he ought to have done, both in ordering that the elevator should be sent down, and in order

ing that the signal to lower should be countermanded, or in ordering the plaintiff not to proceed when he found that he was about to put on his wheelbarrow, would have been, in effect, acts of superintendence. In that case the defendant would not have been liable for these acts of superintendence, because they were not acts of any person intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, and the employer is not made answerable by the statute for acts of superintendence negligently performed in his service by an ordinary workman, or one who is both workman and superintendent, in making declarations which may be interpreted elther as orders of a superintendent, or as assurances of a fellow workman, if in fact they are merely such assurances. Whittaker v. Bent, 167 Mass. 588, 46 N. E. 121. In the present case the superintendent had no other duty than that of superintendency, and when he negligently gave orders, or negligently omitted to give them when required by his position, his employer is answerable. In the opinion of a majority of the court, the entry should be: Exceptions overruled.

The ordinances of the city forbade walking on the grass, and the public were warned by signs to keep off it, as the plaintiffs knew. The judge before whom the case was tried directed verdicts for the defendant, and the plaintiffs excepted.

The ruling, plainly, was right. The plaintiffs were obliged to show their own breach of the law in order to recover (Tuttle v. Lawrence, 119 Mass. 276; Arey v. City of Newton, 148 Mass. 598, 20 N. E. 327; Breuck v. City of Holyoke, 167 Mass. 258, 45 N. E. 732), and to show that they were in a place where they not only were not invited, but were forbidden to be, and where, therefore, the defendant was not bound to expect them, or to make provisions for their safety. The presence of movable seats upon the grass did not repeal the ordinance, or enlarge the rights of the plaintiffs or the liabilities of the defendant. As every one knows, the most probable explanation was that the seats had been put there by members of the public at their own risk.

Exceptions overruled.

SHEEHAN et al. v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

MUNICIPAL CORPORATIONS-INJURY TO TRESPASSER.

Where a city ordinance forbade walking on the grass in a public park, and the public were warned by signs to keep off of it, the city is not liable to persons injured by falling into a trench while walking on the grass, knowing that it was forbidden; and it is immaterial that there were movable seats on the grass.

Exceptions from superior court, Suffolk county; F. A. Gaskill, Judge.

Separate actions by Mary Sheehan and Annie A. Sheehan against the city of Boston, tried together. There were verdicts directed for defendant, and plaintiffs except. Exceptions overruled.

H. J. Jaquith and W. R. Bigelow, for plaintiffs. S. H. Hudson, for defendant.

HOLMES, J. These are actions of tort for personal injuries suffered by falling into a trench in the Public Garden in Boston. The plaintiffs had been sitting upon a movable settee which they found upon the grass, a little way from the path, in the neighborhood of an arbor near the corner of Boylston and Arlington streets. They had risen, and were walking across the grass towards the Newbury street exit from the garden, when, before they reached a path, they fell into the trench. This trench had been dug by the city for the laying of water pipes, and was some 10 feet deep, and was not guarded.

SPAULDING V.

FORBES LITHOGRAPH MFG. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.)

INJURY TO EMPLOYE - DEFECTIVE APPLIANCESEVIDENCE.

1. The duty of an employé was to take cards as printed from a revolving cylinder, which was at his left side, and while working he sat on a board four or five feet long, supported by four iron rods fitted loosely into the board, but he was unaware that its condition was dangerous, and by direction of a superior, took the cards from the cylinder with his right hand. Held, that there was nothing in the nature of the employment calling for a knowledge on the part of the employé of the condition of the seat, and that he could recover for damages received by the seat tipping and throwing him against the machine.

2. In an action for damages to an employé, caused by his seat tipping and throwing him against a machine, evidence that the seat had tipped before, and that the one deputed to give the employé orders knew of the fact, is admissible.

Exceptions from superior court, Suffolk county; E. B. Maynard, Judge.

Action by Jacob Spaulding against the Forbes Lithograph Manufacturing Company. Judgment for plaintiff, and defendant excepts. Overruled.

Gargan & Keating, for plaintiff. John Lowell and James A. Lowell, for defendant.

HOLMES, J. This is an action of tort at common law for personal injuries. The plaintiff was employed by the defendant to remove cards, as printed, from a lithographic press, and to cover them with tissue paper.

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